Some years ago, it was pointed out to me that I occasionally wrote a post about my son, but never wrote about my daughter. The woman who made this point informed me that it was because I was sexist. I explained, in my usual calm, dulcet tone, that it was because my daughter had asked me not to write about her, while my son didn’t care.

Not that it meant she couldn’t impute sexism where none existed, since who am I to question the oppressed informing me that I’m an oppressor for reasons that existed only in her head, but my silence about my daughter was, in actual reality as opposed to her lived experience, a matter of respecting my daughter’s choice. Sorry to tell you, kids, but my children matter more to me than anything I’ll ever write here. More than you. More, even, than me.

Apparently, not everyone shares that perspective. Continue reading →

Under almost any other circumstance, Eric Weil would have been the Good Guy of the story. Maybe given a hearty handshake. Maybe just a quick word of thanks. But for one utterly ordinary human reaction, he would certainly not be facing a second trial and a sentence of 3½ to 7 years in prison for reckless endangerment. But he blew it.

His legal woes began after he agreed to take in a friend’s son who was struggling with addiction on the condition that no drugs be brought into his house. When Weil’s girlfriend Belinda encountered the man actively engaged in drug use in their guest bedroom, Weil called 911 and Alton police arrived.

As officers approached his house, Weil came down the porch steps and tried to hand over an open square of paper containing a white powder he’d found in the guestroom, but was repeatedly told to drop it in his unpaved driveway, which he did.

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It’s bad that your existence in social media is subject to the whims of algorithms. It’s worse that your ability to earn a living off the popularity of your ideas can be eliminated if they don’t conform with the platform’s sensibilities. But when your livelihood is selling goods, and depends on the kindness of the 800 lb. (or$175 billion) gorilla in the online marketplace, Amazon, what is there to do when things go wrong?

As Amazon has escalated its war on fake reviews, sellers have realized that the most effective tactic is not buying them for yourself, but buying them for your competitors — the more obviously fraudulent the better. A handful of glowing testimonials, preferably in broken English about unrelated products and written by a known review purveyor on Fiverr, can not only take out a competitor and allow you to move up a slot in Amazon’s search results, it can land your rival in the bewildering morass of Amazon’s suspension system.

The “law” of Amazon is its terms of service. But writing law is hard. Executing it is even harder. Of course, Amazon isn’t a nation state in reality, but just a private corporation running a platform where billions of dollars can be made. Or lost. While we obsess over the inadequacy of the legal system to address all the nastiness mankind can conceive in the real legal system, the “law” in the Nation of Amazon not only flies under our radar, but remains largely a black box of algorithms, mindless application of pseudo-rules and pre-written responses that outsourced workers in India send when your company’s, your dozen employees’, lives are on the line. Continue reading →

Want to know how clueless I am? When twitter came onto the scene, I scoffed. Back in 2008, the blawgosphere was in full swing, vibrant and, for the most part, pretty darn thoughtful. Posts were a fraction of the length of a law review article, informal and, for the most part, sound. Sure, there were some bad actors in the blawgosphere, and some less-than-good actors, but at least there was good stuff to balance it out.

But I was wrong, and twitter became a thing. I refused to accept this for a while, and even now refuse to discuss my blawg posts on twitter, as twits are transitory and thus fail to contribute to the discussion here. It doesn’t stop anyone from commenting about a post on twitter, but I won’t engage with it. One law student chastised me for it, impugning my motives because she demanded I do things her way. Aren’t law students adorable?

Today, however, my posts are too long and require too much effort, and they aren’t read by enough people to make a difference. David French explains why. Continue reading →

The New York Times exposé on the T.M. Landry College Preparatory School raised all manner of issues, from the education its students were denied to the false transcripts, recommendations, sad tales of racial woe, that got them into colleges desperately seeking diversity. One commenter to the story, a public school teacher, even found a way to twist the tale to be about her gored ox, the underfunding of public education, such that people felt compelled to seek alternatives if they were to go on to succeed.

And indeed, the story lends itself to so many of the problems and fears that reflect the effort to achieve identitarian outcomes despite the failure of process.

T.M. Landry has become a viral Cinderella story, a small school run by Michael Landry, a teacher and former salesman, and his wife, Ms. Landry, a nurse, whose predominantly black, working-class students have escaped the rural South for the nation’s most elite colleges. A video of a 16-year-old student opening his Harvard acceptance letter last year has been viewed more than eight million times. Other Landry students went on to Yale, Brown, Princeton, Stanford, Columbia, Dartmouth, Cornell and Wesleyan.

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Despite his acquittal after trial by jury, Yale wasn’t done with him. At the time, Saifullah Khan really didn’t have a chance, knowing that there was a huge hook for Yale to hang on, that he was found not guilty because the burden of proof was beyond a reasonable doubt. Yale didn’t have to suffer any such burden. Yale didn’t have to endure the onerous requirements of due process. So what if he wasn’t guilty. That didn’t mean he was innocent.

The legalistic distinction between beyond a reasonable doubt and the standard at Yale, preponderance of the evidence, is the technical distinction, but hardly the only one. At a real trial, rules of evidence are used, examination and cross are required and the trial is overseen by a judge, who knows actual law and instructs the jury. It’s not that the lower standard is inconsequential, but only one of the many due process protections that distinguish a trial from a farce.

Yale never wanted Khan back. Yale students never wanted to Khan back. Yet Khan wanted to return to Yale. Maybe he was just a guy who refused to let adversity defeat him. Continue reading →

There can be little question but that her election as a serious reform prosecutor acknowledged her plans to not prosecute a list of offenses that constituted crimes. Suffolk County, Massachusetts, District Attorney Rachel Rollins was up front about it. She campaigned to be the first black female prosecutor and she provided the list of crimes she would refuse to prosecute.

After being elected, but before taking office, she learned that not everyone was going to love her for it.

A group called the National Police Association (NPA) has filed an ethics complaint against Rollins — before she has even taken office. As Carissa Byrne Hessick, director of the Prosecutors and Politics Project at the University of North Carolina School of Law explained on Twitter, the complaint is utter nonsense. It’s based not on any actual ethical violations, but on Rollins’ campaign promise to not prosecute 15 low-level nonviolent offenses, ranging from public trespassing to drug possession.

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Among the many things I collect is Georgian sterling silver, and one of my favorite silversmiths is a woman named Hester Bateman (1708-1794). It’s not that she was a female silversmith, but that she was an exceptional silversmith who happened to be a woman. While this may, to some, be more craft than art, it’s art to me. Your mileage may vary.

Freshly polished Hester Bateman wine funnel (1776).

But what Bateman was not is a gorilla. Rather than protest her way to glory, she created beautiful objects, and hundreds of years later, she remains recognized for her work. The Gorilla Girls are taking a different path. Continue reading →

My old buddy and fellow curmudgeon, Mark Herrmann, has a knack for predicting the future of Biglaw, which comes as no surprise since his position as in-house counsel at Aon allows him to see the “industry” view from the front line. Last year, he predicted that the sexual harassment trend would hit law firms, and he was right. But this year?

2019 will be the year of the woman in the law.  I predicted last year that we’d see more allegations of sex harassment in law firms.  I think that’s come to pass.  Partners at law firms have now been fired after having been accused of impropriety.  Law students have convinced major firms to change their policies about arbitrating employment disputes.

That was a beginning.  In 2019, we’ll see a middle:  Clients will increasingly insist that women participate on trial teams, get origination credit for work, and otherwise progress in law firms.  Firms will be embarrassed by pay equity studies that reveal how women are undercompensated.  The pressures from within and without will make the legal profession bend, and women will see real progress in 2019.

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I told them. They didn’t listen to me. They were right and I was, well, unacceptable. They went from effective, hardcore, flea-bitten realists to fighters for the resistance, because everything was literally Hitler, every burp and fart, and more importantly, every twit had to be noted, excoriated, ridiculed and ripped to shreds. It felt so good to be outraged, and there was always something new to be outraged about.

Remember when NBC was under fire for broadcasting a comedian’s light mockery of Pearl Harbor survivors? And when a costume that the recording artist Macklemore performed in struck some as anti-Semitic? And when Jennifer Lawrence made a rape joke? And Ira Glass’s dig at Shakespeare? And a Washington Post contributor’s remark on marriage and gender violence? And Raven-Symoné’s comment about her racial identity?

Yeah, me neither.

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